Category: Accident Definition

M. R. v Wawanesa Insurance (19-007921)

This is a preliminary decision over the definition of “accident” in the SABS. The claimant was swapping his winter tires to his summer tires when he injured his back. The claimant took the position that this was an “accident” because seasonally changing tires constituted the normal use and operation of a motor vehicle. Adjudicator Flude concluded that changing tires was not an “accident” and the claimant was not entitled to accident benefits. The parties submitted extensive case law from various jurisdictions dating back to 1975. Adjudicator Flude focused on Ontario jurisprudence and the definition of “accident” as per the 1996 amendments to the SABS. Adjudicator Flude held that as the claimant had disabled the vehicle to change the tires so that it was no longer operative (its wheels were off), and that this action did not meet the purpose or causation test to meet the definition of accident. Adjudicator Flude held that the claimant’s position that he had an “expectation of having insurance coverage while performing maintenance” was not reasonable.

P.H. v. Aviva Insurance Company of Canada (18-010205)

A vehicle struck the claimant’s back patio, which caused it to detach from the house. The claimant heard the crash and opened her back door and stepped onto the patio, not knowing that it had detached. She fell through a gap to the ground. The insurer argued that the claimant was not injured in an “accident”. Adjudicator Hans concluded that the incident was an “accident” under the SABS, as it met both the purpose and causation test. The vehicle that struck the patio was being operated in a typical (though negligent) manner, and that the gap through which the claimant fell was directly caused by the use of the vehicle.

G.S. v. The Personal Insurance Company (19-001049)

The claimant sought various accident benefits. The insurer argued that the claimant was not involved in an accident, and alleged that he had made material misrepresentations. The insurer sought repayment of all accident benefits paid. Regarding the burden of proof, Adjudicator Hines held that the claimant had to prove that he was involved in an accident, but that the insurer was responsible for proving a material misrepresentation in order to be entitled to repayment. Adjudicator Hines accepted that the claimant was not involved in the alleged accident, as he was not a passenger in the vehicle he had claimed to be. The claimant did not call any witnesses to support that he was in the vehicle at the time. The claimant’s EUO evidence was inconsistent with the evidence of two other involved parties. Further, the claimant did not mention the accident at various medical appoints after the date of loss. Adjudicator Hines ordered the claimant to repay all accident benefits (medical benefits and NEBs), but he was not required to pay for IE costs incurred by the insurer.

C.B. v. Intact Insurance Company (18-011003)

The claimant was involved in an incident when she was shovelling her parking spot, which led to physical injuries. She applied to the insurer for accident benefits. The insurer denied payment of benefits on the basis that the incident did not fall under the definition of “accident” in the SABS. The incident was described as follows: the claimant moved her vehicle from her parking spot to the throughway in order to shovel her parking spot; halfway through shovelling, she decided to throw salt onto the parking spot; the salt was stored in the trunk of her car, which was parked with the engine off; while walking toward the trunk of her car, she fell and injured her back; the claimant did not make contact with her vehicle when falling. Adjudicator Manigat applied the “purpose and causation” test, and found that the claimant was not entitled to accident benefits as the injuries she sustained were not from an “accident” as defined in the SABS.

W.R. v. Aviva Insurance Company (19-000791)

The insured died while in his vehicle due to a suicide, in which he poured gasoline in his vehicle and set it on fire using the car’s cigarette lighter and a doused dishtowel. The claimant (the insured’s wife) sought death benefits and funeral benefits. Adjudicator Farlam held that the death was not a result of an “accident”, so no accident benefits were payable. The smoke inhalation and fire could not be considered “use or operation” of a vehicle. Rather, the vehicle was simply the venue of the death. Furthermore, she held that a suicide was an aberrant use of a vehicle, not the “ordinary and well-known activities to which automobile are put.” Finally, the adjudicator held that the act of intentionally starting a fire was an intervening act that broke the chain of causation.

K.P. v. Aviva General Insurance (19-004361)

The claimant was injured while walking down the driveway to get into a Lyft, which was waiting to take her to a medical appointment. She applied for accident benefits. The insurer denied the claim, stating that the incident was not an accident. Adjudicator Mather concluded that the incident was an accident under the SABS. She concluded that the purpose test was met because the use and operation of the vehicle began when the Lyft driver accepted the ride request, and included the claimant’s attempt to enter the car. Her only purpose in walking down the ice-covered driveway was to get into the car. The adjudicator also held that the ice was not an intervening act. While it was one of the direct causes of the accident, so was the use and operation of the Lyft that stopped less than halfway up the driveway. Further, it was the use or operation of the Lyft that was the dominant feature of the accident, because the slip and fall on ice was only ancillary to the fact that the Lyft driver stopped half-way up the driveway.

M.P. v. Allstate Insurance Company of Canada (18-012641)

The claimant applied for accident benefits; the insurer argued that the incident was not an accident. The claimant was burned by hot tea while at a red light. The tea had been passed to her through a drive-through window minutes prior and the lid was not securely placed on the cup. Adjudicator Reilly held that the incident was not an accident. The facts of loss did not satisfy the direct causation test. Nothing about the vehicle caused the impairment, and the claimant’s presence in her vehicle was incidental to her injuries. Rather, it was the negligence of the fast-food server in failing to secure the lid that caused the impairments.

Motor Vehicle Accident Claims Fund v. Z.M.H. (18-011392)

The Fund sought repayment of accident benefits on the basis that the claimant was not involved in an accident, and that she had misrepresented the facts of loss. The claimant alleged that she was part-way in her son’s vehicle when he started driving, causing her to fall out of the vehicle onto her knees. The Fund alleged that the claimant suffered a slip and fall incident while walking in an underground parking lot, a few yards away from her son’s vehicle. Adjudicator Hines accepted the claimant’s version of events that she fell while getting into the vehicle as a result of her son starting to move the vehicle. Both the purpose and causation test were satisfied, and the incident fell within the definition of “accident” for the purpose of the SABS. The claim for repayment was dismissed.

I.W. v. Coachman Insurance Company (18-010935)

The claimant sought reconsideration of the Tribunal’s decision that he was not involved in an accident. Adjudicator Grant rejected the reconsideration, holding that there was no error law regarding the purpose or causation test. The claimant had been the victim of an assault, which was an intervening act and the dominant cause of his injuries.

I.W. v. Coachman Insurance Company (18-010935)

The claimant sought reconsideration of the Tribunal’s decision that he was not involved in an accident. Adjudicator Grant rejected the reconsideration, holding that there was no error law regarding the purpose or causation test. The claimant had been the victim of an assault, which was an intervening act and the dominant cause of his injuries.